restricting electronic media coverage of child-witnesses

University of Chicago Legal Forum

Volume 1993 | Issue 1 Article 19

Restricting Electronic Media Coverage of Child-Witnesses: A Proposed RuleKathe Aschenbrenner [email protected]

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Restricting Electronic Media Coverage ofChild-Witnesses: A Proposed Rule

Kathe Aschenbrenner Pate1

In the fall of 1992, the electronic media flooded our livingrooms with live coverage of a trial pitting a young Florida boyagainst his biological mother.1 While few of those in the viewingaudience will forget the boy's poignant plea that he just "wantedto be happy,"2 the circus atmosphere generated by the media andthe attendant legal commentators obfuscated the true purpose ofthe proceeding-to protect the best interests of this particularchild-and, in the end, the process may have actually harmedhim.'

Although historical and fundamental legal tenets demand thatour judicial proceedings be publicly conducted, modern technologyenables the press to take this principle to new extremes. Techno-logical advancements enable the press to disseminate accurate vis-ual and aural reproductions of proceedings through still photogra-phy, audio tape, television, and radio (collectively referred to as"electronic media"). Moreover, broadcasters transmit much of thiscoverage "live," without the benefit of any prior review or edit. Bycontrast, the traditional print media are subject to editing and self-review.

Advocates of televised courtroom coverage claim that such ac-cess enhances the public's understanding of actual courtroom pro-cedure and diminishes common misconceptions about the adminis-tration of justice that fictional television courtroom dramassometimes foster." These proponents also contend that electronic

t A.B. 1987, Harvard University; J.D. Candidate 1994, University of Chicago.' Gregory K. v Ralph K., Docket No. CI 92-5127, JU 90-52-45, Div 4 (Orange County

(Fla) Cir Ct 1992), rev'd, Natl L J, Aug 30, 1993 at 6 (5th Dist Ct of App, Aug 18, 1993). Seealso Associated Press, Boy Has Day in "Divorce Court," Chicago Trib 1, 9 (Sept 25, 1992)(trial broadcast live on both Cable News Network and Court Television Network).

' Sarah Tippit, Boy in "Divorce" Suit Says He Wants To Stay With Foster Family,Reuter Library Rep (Sept 25, 1992).

See Part IV(A) for description of legal process trauma.George Gerbner, Introduction: Televised Trials-Historic Juncture For Our Courts?,

in Susanna Barber, News Cameras in the Courtroom: A Free Press-Fair Trial Debate xii(Ablex Publishing Corp., 1987).

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media coverage enhances conventional reporting methods by"transporting the [actual] sights and sounds of the courtroom"void of any editorial slant.' Opponents of television coveragecounter that electronic media coverage actually skews the public'sunderstanding of trials as a result of broadcasting only sensationalcases. Furthermore, television coverage interferes with courtroomprocedure, adds to the trauma of trial participants, and may en-courage judges to .make popular, rather than just, legal decisions."Nevertheless, because forty-seven states have chosen to allow someform of electronic media coverage of the courtroom, at least on anexperimental basis, advocates of televised trial coverage currentlyappear to be winning the debate.

This Comment challenges the majority view in at least one sit-uation-where children are testifying. The current approach tomedia coverage of minors fails to adequately address the uniqueproblems raised by child-witnesses. Because each state (as well asthe American Bar Association ("ABA") and the media themselves)devises its own guidelines for television coverage of legal proceed-ings, state standards for this important issue are most notable fortheir lack of uniformity. Most important, the vast majority ofstates simply leave the matter up to judicial or media discretion.The failure to establish consistent and workable protective guide-lines has resulted in erratic, unfair, and potentially harmful presscoverage of child-witnesses. This Comment proposes a model ruleof court that would prohibit televised coverage of the testimony ofchild-witnesses in criminal, juvenile, and civil proceedings.

Any proposal to amend the state rules of court governing elec-tronic media access .to judicial proceedings necessarily must con-front constitutional limitations on media access restrictions gener-ally. Thus, Part I of this Comment sets forth the prevailingconstitutional landscape, which currently permits states to developtheir own rules regarding electronic media access. Next, Part IIbriefly describes current approaches to media access, including theABA and state judicial codes of conduct, the binding state rules ofcourt, and the media industry's own guidelines, highlighting thegeneral inattention to the unique problems posed by child-wit-nesses. Part III discusses generally the inadequacies of the prevail-ing judicial discretion approach to electronic media coverage of mi-nor witnesses. Part IV then focuses on the unique problems posedby child-witnesses. Finally, Part V examines the policy arguments

5 Id at xiii.a Id.

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RESTRICTING CHILD-WITNESS COVERAGE

underlying the current presumption in favor of electronic mediaaccess and argues that a state's compelling interest in protectingminor witnesses provides sufficient justification for a ban on broad-casting the testimony of child-witnesses.

I. THE CURRENT CONSTITUTIONAL LAW LANDSCAPE

As early as the 1930s, courts began to consider access rights tocourtroom proceedings for members of the press employing visualmedia, such as cameras.7 However, the Supreme Court did not de-finitively recognize a constitutional right of access to trial proceed-ings until a half-century later. In Richmond Newspapers, Inc. vVirginia,' the Court held that the First Amendment guarantees tothe press and to the public a right to attend criminal trials.,

However, the right to access is not absolute. First, the attend-ance rights bestowed by Richmond Newspapers remained subjectto the outer limit of media access established earlier in Estes vTexas,'" in which the Supreme Court held that a criminal defend-ant was denied "due process by the televising and broadcasting" ofhis trial."

Second, in at least one post-Richmond Newspapers case, theSupreme Court intimated that other compelling government inter-ests might justify restrictions on access rights. Most notably, theSupreme Court said that the protection of minors constitutes acompelling government interest and implied, therefore, that suchan interest would justify narrowly-tailored restrictions on accessrights. 2

Finally, the Supreme Court has held that the constitutionalright of access does not include a right to broadcast trial proceed-

7 See Ex Parte Sturm, 152 Md 114, 136 A 312 (1927). A Maryland court presiding overa murder trial had attempted to protect the defendant from sensational publicity by refus-ing to allow any photographing of the trial proceedings. When two newspaper reporters dis-regarded this ban, took photographs, and published them in a local paper, the court heldthem in contempt.

0 448 US 555 (1980).9 Id. The Court reasoned that the First Amendment cannot protect the free discussion

of government affairs if the public has no access to information about the operation of thegovernment. Id at 575. However, the Supreme Court has never squarely decided whetherthere is a constitutional right to attend other types of proceedings (juvenile and civil pro-ceedings, for example). But see note 26.

'0 381 US 532 (1965).1 Id at 534-35. More generally, the Estes Court held that a defendant has the right to a

trial closed to the media when access jeopardizes the defendant's right to a fair trial.12 Globe Newspaper Co. v Superior Ct for the County of Norfolk, 457 US 596 (1982).

See notes 20-24 and accompanying text for additional discussion of this particular govern-mental interest.

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ings. In Chandler v Florida,13 the Court held that RichmondNewspapers recognized only a constitutional right of attendance.While acknowledging that technological advances had made theelectronic media less obtrusive in the courtroom, 4 the Court re-fused to grant the electronic media a constitutional right of accessthat included the right to broadcast the proceeding, quoting withapproval its language in Nixon v Warner Communications, Inc.:"8

[T]here is no constitutional right to have such [live wit-ness] testimony recorded and broadcast[,] . . . [n]ordoes the Sixth Amendment require that the trial-or anypart of it-be broadcast live or on tape to the public. Therequirement of a public trial is satisfied by the opportu-nity of members of the public and the press to attendthe trial and to report what they have observed.16

Chandler invited states to experiment and develop their own courtrules on electronic media access to criminal proceedings. 7 Thestates have accepted this invitation. 18

In one notable case, Massachusetts enacted a statute thatbanned all press, as well as the general public, from sexual offensetrials involving minors. The Supreme Court struck down the stat-ute as unconstitutional in Globe Newspaper Co. v Superior Courtfor County of Norfolk.1 9 Although the Court found the protectionof minors to be a compelling government interest, it held that theinterest did not justify the breadth of the statute's restrictions,which prohibited all attendance by the press and public.2 0 TheCourt reasoned that Massachusetts could have protected minorswithout impermissibly infringing the press's and public's FirstAmendment right of attendance.2

Globe is important for two reasons. First, the Globe Court ex-plicitly recognized the compelling state interest in protecting child-witnesses from further trauma.22 Thus, the protection of child-wit-nesses apparently would justify narrowly- tailored restrictions on

" 449 US 560 (1981).4 Id at 573-74.

435 US 589, 610 (1978).16 Chandler, 449 US at 569 (emphasis added).

1" Id at 582-83.I8 See Part II(A) for a brief survey of particular state rules.

19 457 US at 596.20 Id at 608-09.21 Id. More particularly, the Court held that the law could have been tailored more

narrowly without significant harm to governmental interests." See Part IV for an extended discussion of this point.

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the press's right of attendance-prohibiting the press from re-vealing a testifying minor's identity, for example.23 Additionally,state courts and legislatures may consider whether the protectionof child-witnesses also warrants restrictions on broadcasting privi-leges in the courtroom. As the Florida Supreme Court hasrecognized:

[F]or certain trial participants [child witnesses], there isa qualitative difference between the printed word and aphotograph.. .. [W]e can conceive of situations where itwould be legally appropriate to exclude the electronicmedia where the public in general is not excluded.2

Second, the Globe Court did not retreat from its holding inChandler and recognize a constitutional right to broadcast. Rather,the Court found the Massachusetts statute unconstitutional be-cause the protection of children did not mandate the statute'sbroad ban on attendance.25 Thus, states are still free, at one ex-treme, to ban electronic media coverage of trial proceedings out-right and, at the other, to permit broadcasting in the courtroomfreely (subject only to the Estes due process-fair trial requirementin criminal cases). Consequently, a model rule of court prohibitingonly broadcasting of testifying child-witnesses raises no FirstAmendment questions.2 6

13 Recall that the right of attendance includes the right to attend the trial and to reportwhat has been observed. See notes 14-16 and accompanying text.

4 In re Petition of Post-Newsweek Stations, Florida, Inc., 370 S2d 764, 779 (Fla 1979).

In other words, it is one thing for a newspaper reporter to watch a trial and report what shehas observed (especially if she refrains from printing the minor's name) and quite anotherfor that minor to be viewed by an audience of millions (whether or not his or her name isdivulged). See also remarks by Fred W. Friendly, On Judging the Judges, in State Courts:A Blueprint for the Future 75 (Aug 1978).

25 Globe, 457 US at 598 n 1.16 Although not necessary to establish the constitutionality of the model rule of court

proposed herein, it is worthwhile to consider the broader constitutional landscape. As indi-cated in note 9, the Supreme Court has never explicitly recognized a right to attend non-criminal proceedings. If no constitutional right of attendance applies to non-criminal pro-ceedings, then a state rule banning attendance of non-criminal proceedings would not raiseconstitutional questions. If the Supreme Court does recognize a right to attend non-criminalproceedings, a broader ban on attendance (than at criminal proceedings) may still be consti-tutional because the interests requiring a publicly-conducted criminal proceeding do notnecessarily apply to non-criminal proceedings. See Part V. Justice O'Connor may have hadthis in mind when she remarked in her concurrence in Globe: "I interpret neither RichmondNewspapers nor the Court's decision today to carry any implications outside the context ofcriminal trials." Globe, 457 US at 611 (O'Connor concurring).

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II. SURVEY OF CURRENT GUIDELINES GOVERNING ELECTRONIC

MEDIA ACCESS

A. Model Codes of Judicial Conduct and Rules of Court

The American Bar Association has long attempted to establishrules regarding press access. In 1937, in the wake of concern overthe widely publicized trial of the Lindbergh baby's kidnapper, theBar enacted the ABA Canons of Judicial Ethics. Canon 35 statedthat:

[t]he taking of photographs in the court room . . . andthe broadcasting of court proceedings are calculated todetract from the essential dignity of the proceedings, de-grade the court and create misconceptions with respectthereto in the mind of the public and should not bepermitted.27

In 1952, the ABA amended the standard to prohibit television cov-erage as well.28 The ABA rules were not legally binding on thestates, however, and in answering Chandler's invitation to experi-ment, some states promulgated different rules of access for theelectronic media.29

Perhaps following the lead of some state rules, the ABAamended its blanket prohibition in 1982 to allow judges the discre-tion to permit electronic media coverage, as long as the coveragewas consistent with a party's right to a fair trial and provided thecoverage was subject to other express conditions that would ensurethat it did not otherwise interfere with the administration of jus-tice.30 Although the ABA did not affirmatively recognize a right tobroadcast, the new canon, renamed Canon 3A(7), suffered from atleast two defects: its imprecise language offered little guidance tojudges, and more importantly, the canon ignored important inter-

21 ABA Canons of Judicial Ethics, Canon 35 (1937), as quoted in Note, Television Cov-erage of Trials: Constitutional Protection Against Absolute Denial of Access in the Ab-sence of a Compelling Interest, 30 Vill L Rev 1267, 1267-68 n 4 (1985).

" Chandler, 449 US at 562-63, citing 77 ABA Rep 610-11 (1952). For a brief history ofCanon 35, see Note, 30 Viii L Rev at 1276-68 (cited in note 27).

'9 See Chandler, 449 US at 563 (noting that "[a] majority of the states ... adopted thesubstances of the ABA provision [Canon 35] and its amendments"); Note, 30 Viii L Rev at1269 (cited in note 27) (stating that Texas and Colorado did not adopt Canon 35). For adescription of some of these rules see Part II.

1 * See ABA Code of Judicial Conduct, Canon 3A(7) (1987), reprinted in Model Rules ofProfessional Conduct and Code of Judicial Conduct (ABA Center for Professional Respon-sibility, 1989).

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ests beyond a party's right to a fair trial-in particular, the inter-ests of a child-witness.

Rather than addressing these troublesome defects, however,the ABA, in 1990, deleted Canon 3A(7) altogether. The ABA an-nounced that the canon did not "address judicial ethics but [was]rather a matter of court administration, which is regulated moreappropriately by separate court rules. ' 31 Whether Canon 3A(7)did, in fact, concern ethical issues is an important question. A largepercentage of state judges are elected and not appointed and tele-vised coverage of trials has only been permitted on non-experimen-tal bases at the state level, raising the possibility that judges mayhave inappropriate incentives for allowing televised coverage ofcertain proceedings.2 In addition, defense attorneys also may util-ize television exposure to enhance their private practice.3 More-over, "[a]s a system of mutual accommodations and pay-offs devel-ops, controls and inhibitions are likely to fall by the wayside. 34

Paradoxically, although televised trial coverage arguably does pre-sent an ethical issue, because those who have the authority to rein-state the canon are the same people who benefitted most from itsdeletion, it is unlikely that the ABA will reinstate Canon 3A(7).

Even if Canon 3A(7) did not directly address an ethical issue,state judiciaries relied heavily on it in defining their own codes ofconduct as well as in defining their rules of court, which, unlikecodes of conduct, bind the state courts." By deleting the provision,the ABA has tacitly approved the removal of similar provisionsfrom the state codes of judicial conduct and has thereby elimi-nated one major source of guidance for the courts on this issue.Because the state courts now lack any national model, a modelrule of court has become even more critical to ensure the adequateprotection of child-witnesses.

A brief survey of the various state rules highlights the generalinattention to the special problem of child-witnesses." The stateguidelines vary widely, from the very restrictive rules in Indiana,

"l Lisa L. Milord, The Development of the ABA Judicial Code 22 (ABA Center forProfessional Responsibility, 1992); conversation with Lisa L. Milord on Oct 22, 1992.

" At least one observer notes that some members of the judiciary may exploit political

opportunities presented by live trial television. George Gerbner, Are We at the Point of NoReturn?, in Kenneth S. Devol, ed, Mass Media and the Supreme Court 440 (HastingsHouse Publishers, 3d ed 1982).

" Gerbner, Televised Trials at xv (cited in note 4)." Gerbner, Point of No Return at 440 (cited in note 32)." See, for example, California Code of Judicial Conduct Canon 3A(7) (1992).36 For an overview of each state's rules of court governing television coverage, see Na-

tional Center for State Courts, Summary of TV Cameras in the State Courts (Oct 12, 1992).

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Mississippi, and South Dakota, to the very permissive provisions inFlorida, where the judiciary has enacted an extremely liberal ver-sion of the ABA's Canon 3A(7). 3 7 It provides:

Subject at all times to the authority of the presidingjudge to (i) control the conduct of proceedings before thecourt, (ii) ensure decorum and prevent distractions, and(iii) ensure the fair administration of justice in the pend-ing case, electronic media and still photography coverageof public judicial proceedings in the appellate and trialcourts of this state shall be allowed in accordance withstandards of conduct and technology promulgated by theSupreme Court of Florida.3 8

The drafters of the Florida canon remarked that it "constitutes ageneral authorization for electronic media and still photographycoverage for all purposes."89 Furthermore, consent of the partici-pants to coverage is not required; coverage is "[limited only bythe authority of the presiding judge in the exercise of sound discre-tion to prohibit filming or photographing of particular partici-pants." ° In addition, the Florida Rules of Juvenile Procedure pro-vide that a child-witness "may be called to testify in open court byany party to the proceeding, or the court, and may be examined orcross-examined as any other witness" except upon a motion andfinding that there is a "substantial likelihood that the child willsuffer at least moderate emotional or mental harm if required totestify in open court."''1

Not surprisingly, Florida's liberal approach to electronic mediacoverage has, generally carried over to televised coverage of minorsas well.42 In fact, the first televised case, Zamora v Florida,43 in-volved a fifteen-year old accused of murdering an 85-year old wo-man. While the court considered the merits of televised trial cover-age of this case, it was seemingly oblivious to the special impact of

11 Florida amended its Canon 3A(7) in 1979 to reflect the Florida Supreme Court deci-

sion in Petition of Post-Newsweek Stations, 370 S2d at 764-68, to allow televised trialcoverage.

"' Florida Code of Judicial Conduct Canon 3A(7) (1992)."9 Florida Code of Judicial Conduct Canon 3A(7), Commentary to 1979 Amendment

(1992).40 Id (emphasis added).,1 Florida Rules of Juvenile Procedure Rule 8.255(c)(1)-(2) (1992). Thus, the court may

order an in-camera examination of a child under the age of sixteen to be broadcast byclosed-circuit television to the courtroom participants. Id.

4 See Gregory K., Docket No. CI 92-5127, JU 90-52-45.43 422 S2d 325 (Fla App 1982).

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television coverage on the minor-defendant.44 If Florida is any in-dication, the interests of child-witnesses clearly are not protectedin states with permissive access rules.

Many less permissive states also fail to specifically address theproblem of child-witnesses. For example, California's more restric-tive Canon 3A(7) permits electronic media coverage in the court-room or its immediate environs only in a few specifically enumer-ated situations43 and only if four conditions are satisfied: (1) it willnot distract the participants; (2) parties as well as any witnessesdepicted have consented; (3) the reproduction will not be exhibiteduntil after all proceedings, including appeals, have been concluded;and (4) the reproduction is exhibited only for instructional pur-poses in educational institutions.4 6 However, like Florida's Canon3A(7), California's canon does not expressly address the child-wit-ness situation, and, regrettably, California's binding rules of courtare a bit more permissive. In particular, Rule 980(b) provides:

The court may refuse, limit or terminate film or elec-tronic media coverage in the interests of justice to pro-tect the rights of the parties and the dignity of the court,or to assure the orderly conduct of the proceedings. Thisrule does not otherwise limit or restrict the right of themedia to cover and report court proceedings.47

Rule 980(b)'s discretionary standard apparently is an improvementover Florida's rule; fewer cases of television coverage of child-wit-nesses seem to be reported out of California than out of Florida.4 8

However, like the Florida rules, California's rules do not specifi-cally address child-witnesses.

Illinois has adopted a novel bifurcated approach that at leastrecognizes the special "human" factors at play during a trial pro-

14 Id. Ironically, the impact of television upon the defendant was noted in two otherinstances. First, the defense counsel raised as one of Zamora's defenses, "voluntary sublimi-nal television intoxication." Id at 328. Additionally, and perhaps more ironically, in the re-port submitted to the Florida Supreme Court in Petition of Post-Newsweek Stations, thepresiding judge of Zamora, Judge Baker, stated that while the cameras did not distract thejurors, "their concern about the impact of television coverage on the defendant and his fam-ily" did. Barber, News Cameras in the Courtroom at 21 (cited in note 4).

45 Electronic media coverage is permitted to perpetuate the record of a proceeding andin ceremonial or naturalization proceedings.

4' California Code of Judicial Conduct, Canon 3A(7) (1992).4 California Rules of Court, Miscellaneous Rule 980(b) (1990).48 If this is the case, it may be attributed to California's presumption against allowing

electronic media coverage (as opposed to Florida's presumption to allow), and to Rule980(b)'s clear contemplation of cases where the electronic media will be banned.

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ceeding.19 In thus fashioning its rule of court, the Illinois SupremeCourt limited extended television coverage to appellate proceed-ings and thereby avoided the "human" problems relating to cover-age of trial proceedings.5 0 As of late 1992, ten states have adoptedthis bifurcated approach.5 1 Like the provisions of Indiana, Missis-sippi, and South Dakota, which prohibit all television coverage, theIllinois provision currently affords the child-witness complete pro-tection. However, there is no evidence that these protective rulesstem from any particular concern for child-witnesses. Therefore, ifany of these states were to abandon their current restrictive ap-proaches, there is little reason to be optimistic that they wouldmake an exception for child-witnesses. Most states simply fail toaddress the problem. New York, however, has adopted one of thefew rules that does address the special needs of children. NewYork's binding rule of court mandates that the presiding judge"shall consider and give great weight to the fact that any party,prospective witness, victim or other participant in the proceedingis a child. ' 52 New York's rule marks an improvement as it directsjudges to give "great weight" to a child-witness's interests; never-theless, because it ultimately leaves the decision to judicial discre-tion, children are not consistently protected.

The widely publicized New York case of Allen v Farrow5s pro-vides a striking example. Initially, the trial judge permitted televi-sion coverage of hearings on the grounds that the parents hadwaived any privacy rights by appearing voluntarily in the mediaand that the public's right to know-via television cover-age-outweighed the interests of the children involved. On appeal,the reviewing judge reversed the order holding that the children's

4 The Illinois Supreme Court has held:A trial is a complex proceeding involving human factors difficult to measure orexplicate. There are inherent problems in any trial proceeding which would beexacerbated by the presence of extended coverage. They often involve psychologi-cal factors which cannot be reached by rules of court attempting to govern ex-tended coverage of a trial. Trials are too sensitive and important to admit ap-proval of factors that may expose them to prejudicial influences.

In re Photographing, Broadcasting, and Televising Proceedings in the Courts of Illinois,MR No 2634 (Ill 1983) (Illinois Supreme Court order amending Ill Ann Stat ch l10A, S CtRule 61, Canon 1 (Smith Hurd 1992)).

0 Id. The Illinois Supreme Court stated that "[t]he function of a court is to do justicein cases that come before it. It is not its role to be a teaching or informational instrument."Id.

1 See Summary of TV Cameras in the State Courts, Table 1, Summary of State Rules(cited in note 36).

5" New York Court Rules § 131.4(b)(8) (1992) (emphasis added).53 Allen v Farrow, Index No 68738/92 (NY Sup Ct, Nov 13, 1992).

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privacy interests were not waived and must be protected.5 4 Then,on a motion to televise a second hearing, the trial judge reversedhis original conclusion, ruling that the second hearing should notbe televised.5 Thus, even in states in which the judge is directed tostrongly consider the presence of a child-witness, the judge, usinghis discretion, may allow potentially harmful television coverage.

B. Guidelines and Norms Established by the Media

The media have developed their own sets of working rules,both in the form of a general code of professional conduct as wellas individual station and programming guidelines. These rules arecritical in states that have permissive broadcast rules of court, asthe media's own rules provide the last protective measure affordedto child-witnesses. Nonetheless, these rules prove inadequate.

The leading programmer of live televised coverage of trial pro-ceedings is Court TV. Known for its "gavel-to-gavel" coverage ofboth legally important and sensational trials, Court TV has devel-oped its own set of guidelines regarding the broadcast of a minor'stestimony. 6 Under its guidelines, Court TV does not broadcast thetestimony of any witness less than twelve years old; if the witnessis a minor, but at least thirteen years old, Court TV does notbroadcast testimony that might in any way include intimate orpersonally sensitive matters. For example, Court TV may cover afourteen-year-old witness testifying about a car accident, but willnot cover that same witness if she testifies about child abuse .5

Although it may choose not to televise certain trials involvingminors, Court TV may be fully within its rights, as determined bythe particular jurisdiction's rules of court, to televise the testimonyof a child-witness. Its independent choice not to exercise its rightsmerely represents a form of "self-policing." 8 While this self-re-straint is laudable, the lack of an absolute prohibition against tele-vising testifying child-witnesses remains problematic. For example,both Court TV and Cable News Network ("CNN") televised the

" Allen v Farrow, Index No 68738/92 (NY Sup Ct, Dec 1], 1992) (judge emphasizedNew York rule governing electronic media coverage which directs judges to give great weightto whether a child is involved).

"' Allen v Farrow, Index No 68738/92 (NY Sup Ct, Jan 8, 1993)." Conversation with Steven Brill, Chief Executive Officer and President of American

Lawyer, Media L.P., and Court TV on Jan 7, 1993, about Court TV's explicit written andimplicit internal guidelines.

6 Id.Court TV and, most likely, other media prefer to label this self-restraint "adhering to

professional standards" or "tasteful editing"; perhaps these are more apt descriptions. Id.

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Gregory Kingsley "divorce" case despite the fact that he was onlytwelve. 9 As this example illustrates, the media's good intentionsmay be swept aside by a legally important or sufficiently sensa-tional case. 0 Professional self-restraint, therefore, does not alwayssucceed in protecting the child-witness-nor should the media beforced to carry the entire burden of protecting such witnesses, par-ticularly when declining to broadcast runs counter to its pecuniaryinterests. The adoption of a binding, narrow rule of court prohibit-ing television coverage of minors' testimony would eliminate thisproblem by removing the choice from both the media and thebench. 1

III. THE INADEQUACY OF THE CURRENT APPROACH

As described above, the majority of state court rules give pre-siding judges discretion to prohibit or permit electronic media cov-erage of their trials. Not surprisingly, discretionary rules have ledto a wide variety of results, both at the trial and appellate levels.While the courts have made some progress in defining media ac-cess rights to legal proceedings involving minors, case law has notyet developed to a point where courts consistently decide to pro-tect the child-witness.6 2 As Allen v Farrow"s illustrates, judges canreach widely differing decisions even when applying the same ruleto the same set of facts.

Not only does this lack of uniformity give rise to inconsistentclosure rulings among the states and occasionally even within a

" See Associated Press, Chicago Trib at 9 (cited in note 1) (trial broadcast live on bothCNN and Court TV).

"0 The media often compete in a "race to the bottom," in which they broadcast excruci-

atingly bland or shockingly scandalous programming in order to maximize the size of theiraudiences, thereby enabling them to maximize advertising revenues.

" Note that while television programmers, at the very least, recognize that certain wit-nesses are more vulnerable than others and have taken steps to protect these witnesses,Court TV rightly points out that the print media often publishes still photos of these verysame trial participants. Conversation with Steven Brill (cited in note 56). Therefore, amodel rule of court including the prohibition of both still and live photography in the court-room and its environs may be a more comprehensive and effective guideline.

" For example, in Miami Herald Publishing Co. v Morphonios, 467 S2d 1026 (Fla DistCt App 1985), a Florida appellate court reversed a pretrial gag order and granted mediaaccess to a pretrial taping of trial testimony of a minor child abuse witness.

In civil proceedings, decisions have also varied. For example, Anonymous v Anonymous,158 AD2d 296, 18 Media L Rep 1560 (NY App Div 1990), noted that the strong constitu-tional and statutory presumption of open judicial proceedings is overcome in child custodydisputes. In contrast, Sprecher v Sprecher, 15 Media L Rep 1773 (NY Sup Ct 1988), recog-nized the media's right of access to a child custody proceeding, even permitting the use oftelevision cameras for videotape coverage of such proceedings.

'3 Index No 68738/92 (NY Sup Ct, Nov 13, 1992).

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single case, but it also discourages reluctant witnesses from comingforward. The dissent in Globe explicitly noted this problem andattacked the majority's case-by-case rule as defeating this impor-tant, if not compelling, state interest.6 4 In the dissent's words,"[t]he mere possibility of public testimony may cause parents andchildren to decide not to report . . . crimes." 65 A uniform rule ofcourt would alleviate much of this fear, thereby encouraging wit-nesses to come forward and, in turn, would aid the court's fact-finding function.

Even in states in which television coverage is banned, childrenand parents are unlikely to be aware of the protection offered intheir states. Because parents and children likely base their knowl-edge of media access policies on what they see on televi-sion-which includes national coverage-they are likely to thinkthat television coverage in their state is probable. Thus, even instates with quite restrictive rules, the lack of a uniform rule ham-pers the state's interest in encouraging witnesses to come forward.A national rule would send a clear signal to parents and children.

Most important, the existing rules of court do not encouragejudges to consider the child-witness's interest in these situations.Most states promulgated their rules without contemplating theunique needs of children. Unfortunately, judges are apparently fol-lowing suit, failing to prohibit television coverage of child-wit-nesses. Thus, the current state rules do not effectively cabin judi-cial discretion.

Unfettered judicial discretion aggravates many of theproblems that result from the lack of uniformity. For example,some child-witnesses suffer as a result of judges who value televi-sion exposure more than the minor's interests.6 Consequently, de-cisions are inconsistent, discouraging witnesses from testifying,whether or not they reside in a highly protective jurisdiction.

The media's professional guidelines also fail; pecuniary inter-ests and ratings races override any interest in protecting child-wit-nesses. Thus, mechanisms depending upon judicial discretion ormedia self-restraint cannot succeed. Not only is the current ap-proach ineffective, but the special needs of child-witnesses, such astrial process trauma, lack of ability to give meaningful consent,

Globe, 457 US at 618-19 (Burger dissenting). Discretionary decisionmaking on an in-dividual, case-by-case basis would likely deter parents and children from reporting crimes astheir ability to shield children from publicity would be unknowable.

" Id at 619.See notes 32-34 and accompanying text.

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and reluctance to testify, are also for the most part completely ig-nored. A flat ban addressing these unique needs would best protectchild-witnesses and circumvent failures in judicial discretion andmedia self-restraint.

IV. CHILD-WITNESSES PRESENT UNIQUE ISSUES

Courts and commentators have long recognized that child-witnesses are different from adult witnesses.6 7 In the words of onestate research center, "[a] child witness is not a miniature versionof an adult witness. . . . They have vulnerabilities, needs and limi-tations not found among adult witnesses."" Even the Florida Su-preme Court, historically the most permissive in allowing elec-tronic media coverage, expressly recognized, in its initial decisionallowing television coverage, that electronic media coverage oftenexacerbates the trauma suffered by child-witnesses:

Electronic media coverage of certain child custody pro-ceedings could have a devastating impact on the welfareof the child participant. The future well-being of thechild far outweighs the public's interest in being in-formed of such proceedings.. 9

Most courts agree that states have a compelling interest inprotecting minors and generally focus on three features that distin-guish child-witnesses from adult witnesses: (1) children suffergreater psychological trauma when asked to testify in court; (2)children cannot always give meaningful consent to press accesswhen consent is required for television coverage; and (3) like rape-victim witnesses or government informants, children may requireadditional inducement to confront the accused due to fear of repri-sal or embarrassment.

A. "Legal Process Trauma" and Child-Witnesses

"Legal process trauma" describes the psychological and emo-tional trauma that children suffer as a result of participating in

" For example, both the Globe majority and dissent recognized that child-witnessespose unique problems not presented by adult witnesses. Globe, 457 US at 607 ("safeguard-ing the physical and psychological well-being of a minor. . . is a compelling one"); id at 614(Burger dissenting) ("There is clearly a long history of exclusion of the public from trialsinvolving sexual assaults, particularly those against minors.").

" Ellen Matthews and Karen Sayowitz, Child Victim Witness Manual, 12 CaliforniaCenter for Judicial Education and Research J 1, 7 (Winter/Spring 1992).

'9 Petition of Post-Newsweek Stations, 370 S2d at 779.

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legal proceedings. 0 Several aspects of the judicial system maytraumatize children. In a recent study of child-witnesses, the mostfrequently mentioned fear was direct confrontation with the de-fendant.7 Other traumatizing elements include "repeated inter-views by an array of strangers, the unknown and formal nature ofthe courtroom, testifying before an audience, attempting to explainconfusing events in adult language, cross-examination, and thelength of the process. '7 2 Like many rape victim-witnesses, childrenmay also suffer self-blame, a sense that "everybody knows," andembarrassment.

As noted earlier, the Globe majority agreed that safeguardinga child-witness's psychological well-being was a compelling govern-mental interest.7 The dissent expressed a common sentiment,stating that excluding the press and public "rationally serves the[government's] overriding interest in protecting the child from thesevere-possibly permanent-psychological damage. It is not dis-puted that such injury is a reality. ' ' 74 Numerous psychologicalstudies affirm this empirical conclusion.75

B. Children's Inability to Give Meaningful Consent

Twelve states prohibit electronic media coverage unless someor all of the participants consent.76 Consent poses problems whenthe witness is not an adult-how and at what age do the courtsestablish that a child can give meaningful, fully-informed consent?Unlike an adult witness, a child-witness most likely cannot givemeaningful consent to television exposure to a potential audienceof millions. Nor can the problem be circumvented, as some statesattempt to do, by allowing a parent or state-appointed guardian toconsent on behalf of the minor. First, the child-witness may be tes-tifying against that parent (for example, in an intrafamily sexual

7" Mike I. Soler, Representing the Child Client § 7.04 at 7-17 (Matthew Bender & Co.,

1992), citing David Libai, The Protection of the Child Victim of A Sexual Offense in theCriminal Justice System, 15 Wayne L Rev 977, 983 (1969).

" Id, citing D. Whitcomb, E. Shapiro, and L. Stellwagen, When the Victim is a Child:Issues For Judges and Prosecutors 17 (United States Department of Justice, 1985).

Id at 7-18.7s Globe, 457 US at 607. However, in Globe, the Supreme Court held only that the

psychological well-being of a child-witness did not justify a blanket ban on attendance." Id at 617 (Burger dissenting)." See research cited in Soler, Representing the Child Client at §§ 7-18, 7-19 (cited in

note 70).7' For example, see Ill Ann Stat ch 110, Illinois Code of Civil Procedure § 8-701 (Smith-

Hurd 1992). For a survey of other states' consent requirements, see Summary of TV Cam-eras in the State Courts (cited in note 36).

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abuse case); second, a state-appointed guardian will unlikely knowthe child-witness well enough to consent meaningfully on the mi-nor's behalf. Additionally, judges should not have the discretionarypower either to differentiate between children who can and cannotmeaningfully consent or to consent on their behalf. Hence, eventhose states requiring consent fail to adequately protect the inter-ests of the child-witness.

C. Additional Inducement Required for Child-Witnesses

Like rape victim-witnesses, child-witnesses may be reluctantto testify." Because a judicial proceeding seeks to discover thefacts and resolve the dispute in a just manner, the government hasa strong interest in encouraging these witnesses to testify despitetheir legitimate fears. The Globe Court held that encouraging mi-nor victims of sex crimes to come forward and provide accuratetestimony was not a compelling interest, because it did not find theempirical evidence supporting it sufficient.78 Calling this argumenta "cavalier disregard of the reality of human experience," ChiefJustice Burger and Justice Rehnquist stated in their dissent that awitness "may well be deterred from reporting a crime on the beliefthat public testimony will be required. 7 9 While it remains difficultto gauge empirically a potential witness's fears about testifying incourt, empirical evidence certainly shows that trauma does occur.8 0

V. THE STATE'S INTEREST IN MINORS OUTWEIGHS COMPETING

INTERESTS

These general arguments demonstrate that child-witnessespose unique problems that must be solved by fashioning rules thatreflect their needs. In Globe, the Court implicitly balanced theseneeds against the asserted competing interests."e Application of the

Globe, 457 US at 619 (Burger dissenting).7, Id at 609-10.7' Globe, 457 US at 617, 619 (Burger dissenting). The dissent noted that the state

might also (or instead) assert another interest: the protection of witnesses from the traumaof testifying in front of an audience of voyeurs. Id at 618. Moreover, the dissent suggestedthat this interest in protecting a witness from voyeuristic strangers would be greatly magni-fied if the audience were expanded through television coverage and "reruns on the eveningnews." Id.

80 See note 75 and accompanying text.81 Although the Court agreed that safeguarding a minor from further trauma is a com-

pelling interest, it suggested that the interest was not compelling "enough." The Globe dis-sent stated outright that it was employing a balancing test but reached the opposite conclu-sion: "Our obligation in this case is to balance the competing interests: the interest of the

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Globe balancing test is not constitutionally required in cases wherea narrowly tailored ban does not impair the media's attendancerights. Nevertheless, applying the Globe standard to a ban prohib-iting broadcasting during a child-witness' testimony, the child's in-terests outweigh all other interests in any type of proceeding.

A. Child-Witnesses in Criminal Proceedings

The historic tradition of an open criminal trial has been a fun-damental tenet of our judicial system since its inception. 2 Histori-cally, public access to the criminal trial has served as a checkagainst unjust convictions, excessive punishment, and the unde-served taint of criminal charges.8 3 Public access to trials also bol-sters society's trust in the judicial system, and it may alleviate so-ciety's urges for retribution, allowing the public to participatevicariously in the application of justice.8 4 The public has informa-tional and educational interests in the proceeding as well. Thus,both the defendant and the public have great interests in criminalproceedings. The state's interest in protecting a minor from legalprocess trauma, therefore, faces its greatest challenge in a criminalproceeding. The state's acknowledged compelling interest in pro-tecting child-witnesses outweighs the media's interest in broadcast-ing, however, and neither impairs the defendant's right to a fairtrial nor the public's right to attend.

A defendant's Sixth Amendment right to confront his accuseddoes not require that the witness testify in open court. For exam-ple, courts have approved the practice of using closed-circuit tele-vision to reduce a child-witness's uneasiness about facing the de-fendant.8 5 If the judiciary recognizes the trauma a child-witnessmay experience when testifying in open court, then it must ac-knowledge the even greater trauma a child-witness experiences

media for instant access, against the interest of the state in protecting child rape victimsfrom the trauma of public testimony." Globe, 457 US at 616 (Burger dissenting).

0' See Richmond Newspapers, 448 US at 569.

01 Globe, 457 US at 606.84 Richmond Newspapers, 448 US at 571." The Supreme Court upheld the practice of testifying by closed circuit television in

Maryland v Craig, 497 US 836 (1990). The child-witness did not see the defendant, but thedefendant could still monitor the child's testimony. The Supreme Court, citing Globe, heldthat Maryland had shown that its interest in protecting the child-witness from the traumaof testifying in front of the defendant was sufficiently compelling. Id at 852-53.

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when his or her testimony is broadcast to an audience of millionsvia the electronic media."

This same concern appears in other trials involving sensitivetestimony, most notably with rape victim-witnesses. The televisionmedia has generally responded to the problem by blurring the fa-cial identity of the witness (although the audio testimony is oftennot obfuscated). Given the magnification of the fears and trauma achild suffers during any legal proceeding, this resolution is argua-bly inadequate with a child-witness, especially when the child isalso the victim. 87 Moreover, those from whom the child most fearsidentification (classmates, for example) will likely be able to iden-tify the child despite any blurring.

Nevertheless, the public's safeguarding function and right toinformation is strongest in the context of a criminal trial. The pub-lic must be able to weigh each witness's testimony and credibilityin order to ensure that the trial is conducted fairly and that theoutcome reflects a just resolution. However, electronic media cov-erage is not necessary to vindicate these interests. As the SupremeCourt recognized in Nixon, the guarantee of an open trial requiresonly the right to attend and to report what was observed.88

On the other hand, the need to protect the child-witness mayalso be the most critical in the criminal context, given that chil-dren do not ordinarily testify in criminal proceedings unless theyare the victim or have witnessed a crime, either event by itselftraumatizing. Television exposure may exacerbate whatevertrauma the child has already suffered. States have a compelling in-terest in preventing this additional harm.

B. Child-Defendants in Juvenile Proceedings

The argument against broadcasting child-witnesses' testimonyis even stronger in juvenile proceedings, in which the child-witnessis the defendant. The juvenile courts focus on rehabilitation, notretribution. 9 Because children are believed to be more responsive

8 The precise size of the viewing audience-whether it numbers in the thousands or

millions-is irrelevant. The presumption of a large audience on the part of the child-witnessor parent is sufficient to cause the legal process trauma. See Globe, 457 US at 599, 600 n 5(minor witnesses less concerned with media presence than the idea that their identity wouldbe divulged to a large audience).

8' See note 75, citing studies examining the additional trauma that minors involved inlegal proceedings may suffer.

" Nixon, 435 US at 610." Indeed, a juvenile offender is neither convicted nor sent to prison, and a juvenile

offender's record is expunged upon reaching the age of majority. In some courts a juvenile

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to treatment, the chance for rehabilitation into productive andlaw-abiding citizens is thought to be greater than for adult offend-ers.90 Proponents of juvenile offender anonymity argue that elec-tronic media coverage of a juvenile court trial would impede theachievement of these goals.9 1 They argue that such coverage wouldpermanently stigmatize the juvenile offender, hinder the develop-ment of socially acceptable behavior, and perhaps even confer ce-lebrity status upon the juvenile, spurring him or her to engage infuture delinquent behavior.2 Opponents of closed juvenile pro-ceedings counter that publicity deters juvenile crime by forcing theyoung offender to take responsibility for his or her deviantconduct."'

However, most states have focused on the potentially harmfuleffects of publicity on a juvenile offender and have enacted closurepolicies for their juvenile courts. In fact, one court refused a juve-nile's request for an open hearing, not only because of the possibledeleterious effects on the juvenile's rehabilitation, but also becauseopening the proceeding might convey to the "immature respondentan impression of celebrity rather than solemnity." '94 The SupremeCourt echoed these sentiments in In re Gault and endorsed thetraditional juvenile court policy "to hide youthful errors from thefull gaze of the public and bury them in the graveyard of the for-gotten past." 95

Critics of closed juvenile proceedings also claim that the pub-lic has informational and safeguarding interests similar to anyother proceeding." However, as in the criminal setting, vindicatingthese interests does not require electronic media coverage of testi-fying juveniles.9 As nearly all states recognize, the balancing test

offender is not even called a "defendant," but a "respondent." The system functions in thismanner because the juvenile offender is considered "highly salvageable."' Paul R. Kfoury,Children Before the Court: Reflections on Legal Issues Affecting Minors 53 (ButterworthLegal Publishers, 2d ed 1991).

9Id.o Id at 53-54.92 Id. Additionally, proponents claim that publicity itself is a form of punishment, a

type of media pillory inconsistent with the rehabilitative goals of the juvenile justice system.Kfoury, Children Before the Court at 54 (cited in note 89).

93 Id." In re Robert M., 109 Misc 2d 427, 439 NYS2d 986, 989 (1981).9' In re Gault, 387 US 1, 24 (1967)." Kfoury, Children Before the Court at 55 (cited in note 89)." Some juvenile court systems, however, have succeeded in addressing these interests

while maintaining the confidential nature of juvenile proceedings. For example, the CircuitCourt of Cook County, Illinois has created the Citizens Committee on the Juvenile Court,Juvenile Court of Cook County Information Booklet 5 (Circuit Court of Cook County, Sept

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favors protecting the juvenile offender when the sole competing in-terest is the public's "right to know."'9 8

C. Child-Witnesses in Civil Proceedings

The argument against broadcasting child-witnesses' testimonyis strongest in the context of a civil proceeding. In a civil proceed-ing, because there is no criminal defendant whose freedom is atstake, the role of the public as a watchdog guarding against an ar-bitrary or unjust government is not as critical as in a criminal orjuvenile proceeding. A civil proceeding often involves issuesuniquely personal to the parties, and the public's interest thereforemay constitute no more than an entertainment or prurient inter-est. The equation, therefore, tips heavily in favor of protecting thechild-witness from the possible trauma of electronic media cover-age in civil proceedings. 9

Although civil proceedings are rarely fodder for televised trialcoverage, 100 the situation does arise and the need for protectionand uniformity can be just as great as in a criminal proceeding. Acase in point is the custody battle between Mia Farrow and WoodyAllen, in which each hearing and proceeding became a battlefieldfor the television media to attack the parties' desire for a closedproceeding.' Although the unique problems of child-witnessesgreatly outweigh the interests of the public in civil proceedings,courts fail to consistently protect child-witnesses, even in thiscontext.

D. Proposed Model Rule of Court

Having concluded that the state interest in protecting thechild-witness outweighs any interest in coverage by the electronicmedia, this Comment proposes the following model rule of court:

1989), which, since 1963, has served as an independent body representing society's interestsin the Juvenile Court and in the Juvenile Temporary Detention Center by monitoring thepolicies and the practice of the juvenile court system. The Citizens Committee on the Juve-nile Court Annual Report 5-7 (1990). Adoption of similar watchdog groups in other jurisdic-tions would do much to satisfy the public's interests while safeguarding the juvenile courtsystem's aspirations.

o Summary of TV Cameras in the State Courts (cited in note 36)." This conclusion was explicitly stated in Petition of Post-Newsweek Stations: "The

future well-being of the child [in certain custody proceedings] far outweighs the public'sinterest in being informed of such proceedings." 370 S2d at 779.

100 Sensational criminal proceedings generally draw the highest audiences and are,therefore, preferred.

101 See, for example, Richard Pfrez-Pefla, Judge Scolds Lawyers In Woody Allen Case,NY Times 1-1, 1-13 (Jan 9, 1993).

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In criminal, juvenile, and civil proceedings, electronic me-dia coverage of a witness under the age of eighteen in thecourtroom or its immediate environs is prohibited. Thetestimony of the witness shall not be photographed, re-corded, or broadcast. Attendance by the electronic andprint media shall be permitted at the discretion of thepresiding judge.

This model rule of court prohibits television or radio coverage of achild-witness while testifying and while in the environs of thecourthouse. The rule does not, however, prohibit attendance byany representative of the media at the trial itself.102 In this sense,representatives of the electronic media are free to report on thetrial events in much the same manner as their print media coun-terparts and have an equal right of access. Instead of using theprinted word, a television reporter could orally relay the events ofthe day to the television audience either after the day's proceed-ings or outside of the courthouse. This rule satisfies the public'sinformational and watchdog interests as well as the defendant'sright to a fair trial while protecting the child-witness from trau-matic media exposure.

CONCLUSION

Current judicial treatment of television coverage of child-wit-nesses is inadequate. Rules of court governing electronic mediacoverage of child-witnesses are not uniform and are inconsistentlyapplied. Moreover, rules which rely on judicial discretion have notprevented child-witnesses from being exposed to deleterious televi-sion coverage. The self-restraint mechanisms of the professionalmedia have been selectively applied.

The model rule proposed by this Comment affords absoluteprotection to the child-witness while ensuring fairness to othertrial participants. First, it prevents the additional trauma that tel-evision coverage of a child-witness would likely produce. Second, itencourages children and their parents to come forward by impos-ing uniformity. Third, the proposed rule is fair to the defendantand to the media, banning only broadcasting, not attendance,thereby ensuring the defendant's right to a public trial and themedia's right of access. Fourth, the proposed rule avoids failures in

102 Note that the judge in a particular trial still retains any existing discretionary power

to close the courtroom or limit attendance-consistent with the Constitution-as he or shedeems appropriate.

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judicial discretion and alleviates any ethical concerns. Finally, itlikewise avoids weaknesses in the media's self-restraint.

The proposed rule adequately addresses the special needs ofchildren testifying before the court. Moreover, it is narrowly tai-lored to safeguard the interests of the public and the other trialparticipants. While the proposed rule admittedly infringes uponthe electronic media's ability to report without constraint, a prohi-bition of this kind represents only a "minimal interference withthe freedom of the press.' 103 The adoption of the proposed modelrule of court, which better serves the interests of the governmentand the child-witness while preserving the constitutional rights ofthe other participants, surely justifies such a minimal impediment.

13 Smith v Daily Mail, 443 US 97, 109 n 2 (1979) (Rehnquist concurring) (referring toa standard by which the state banned the publication of the youth's name).

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restricting electronic media coverage of child-witnesses

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